February 25, 2010
GEORGE R. SZYMANSKI, PLAINTIFF-APPELLANT,
HARRIS C. LEGOME, BRUCE A. WALLACE, WALLACE & LEGOME, LLP, AND JESSICA ALLEN, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5601-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 21, 2010
Before Judges Fisher, Sapp-Peterson and Espinosa.
Plaintiff George R. Szymanski (plaintiff) commenced this action for damages based on an attorneys' lien he claims attached to the settlement funds received by his former client, defendant Jessica Allen (Allen), in a personal injury suit plaintiff commenced on her behalf. The settlement was achieved after plaintiff was replaced as Allen's attorney by defendants Harris C. Legome, Bruce A. Wallace, and Wallace & Legome, LLP (defendants).
In discovery, plaintiff had responded to an interrogatory requesting a detailed description of the services he performed on Allen's behalf by stating that the task was "nearly impossible." Notwithstanding, at trial, plaintiff attempted to offer a detailed estimate and description of the services he provided, which the judge barred; following that, the judge granted an involuntary dismissal in defendants' favor.*fn1
Plaintiff appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN NOT AWARDING [PLAINTIFF] A PERCENTAGE OF THE ATTORNEY FEES.
A. Background Of The Law Of Quantum Meruit In New Jersey.
B. [Plaintiff's] Contribution To The Outcome Of Jessica Allen's Case Was Greater Than That Of [Defendants].
C. [Plaintiff] Also Made A Significant Financial Contribution To Jessica Allen's Case.
D. [Plaintiff] And Jessica Allen Agreed How Quantum Meruit Would Be Measured.
II. THE TRIAL COURT ERRED IN GRANTING THE MOTION OF [DEFENDANT] FOR INVOLUNTARY DISMISSAL.
A. The Trial Court Could Not Have Dismissed [Plaintiff's] Case Against [Defendant] Until After The Case Against Jessica Allen Was Presented.
B. [Plaintiff] Had Proved A Case Against [Defendant] For Causation And Breach Of Fiduciary Duty.
C. [Plaintiff] Was Unfairly Prejudiced Because The Trial Court Bifurcated His Case Into Two Separate Trials, Which Violated Rules [3:8-2(a)] and 4:43-2(b).
D. The Trial Court Should Have Permitted [Plaintiff] To Testify About The Amount Of Time He Spent On Jessica Allen's Case.
III. THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST DEFAULTING DEFENDANT, JESSICA ALLEN, IN AN AMOUNT THAT WAS TOO LOW.
IV. THE TRIAL COURT ERRED IN DENYING [PLAINTIFF'S] MOTION FOR A MISTRIAL FILED ON NOVEMBER 3, 2008.
V. THE TRIAL COURT ERRED BY NOT ALLOWING THE PLAINTIFF TO CONDUCT DIRECT EXAMINATIONS OF THE DEFENDANTS AND BY LIMITING THE CROSS-EXAMINATION OF HARRIS LEGOME.
VI. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR A MISTRIAL ON JULY 2, 2008 ON THE BASIS THAT [THE TRIAL JUDGE] HAD ALREADY DECIDED HOW HE WAS GOING TO RULE LONG BEFORE THE PLAINTIFF'S CASE WAS OVER.
VII. [THE TRIAL JUDGE] ERRED IN DENYING THE PLAINTIFF'S MOTION BROUGHT EARLY IN THE LITIGATION TO RECUSE HIMSELF.
VIII. THE JUDGMENTS ENTERED BY THE TRIAL COURT SHOULD BE VACATED BECAUSE OF [THE TRIAL JUDGE'S] BIAS AND DISPARATE TREATMENT OF THE PLAINTIFF DURING TRIAL.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
The record reveals that Allen was injured on February 16, 2001, while working at a Macy's store in Cherry Hill, when a drawer she pulled open fell out of the filing cabinet and onto her ankle. An attorney represented Allen until January 2003, when, due to the arising of a conflict of interest, plaintiff was engaged to take over the matter. After meeting with Allen and her former attorney, plaintiff viewed the matter as encompassing both product liability and medical malpractice claims. Plaintiff agreed to represent Allen, and he and Allen entered into a contingent fee agreement on February 3, 2003, which stated, in part, that "if the client discharges the attorney," Allen would compensate [him] for his time at the rate of $275.00 per hour, as well as for all costs that the attorney has expended in pursuit of the claim, within thirty days of the client's receipt of the attorney's bill, or the attorney can elect to receive a portion of the fees from any settlement achieved by the new attorney, which would not be less than 10% of the net settlement amount.
Plaintiff was provided with the file compiled by his predecessor as well as the file of the attorney who was handling Allen's workers' compensation claim. The latter file included numerous medical records concerning Allen's treatment, Allen's employer, and its related affiliates.
Plaintiff claimed that within the brief period of time between his retention and the termination of the statute-of-limitations period, he was required to investigate whether Allen had a valid medical malpractice claim and whether there were entities other than Allen's employer that could be sued due to the injuries sustained at the workplace. On February 13, 2003, plaintiff filed a multi-count, five-page complaint on Allen's behalf against seven different defendants. Following the commencement of the action, plaintiff discussed the case with a medical expert, who opined that no malpractice was committed in the treatment of Allen. As a result, that part of the complaint was dismissed.
Plaintiff also discussed the matter with Allen's treating physician to obtain a report to be used in the damage portion of Allen's claim against the remaining defendants in her suit.
Plaintiff retained an engineer to act as an expert concerning the alleged defects in the filing cabinet. Plaintiff obtained permission to inspect the premises where the accident occurred and attended the expert's inspection of the area. The expert's bill revealed that the inspection took one hour. The expert provided a report favorable to Allen's contentions.
The treating doctor provided a report that Allen had sustained an extensive injury and had a poor prognosis for improvement.
Plaintiff did not serve or respond to any discovery requests.
On August 18, 2003, Allen wrote to plaintiff advising that his services were "no longer required," directing that he "cease and desist all further activity on [her] claims," and requesting that he "immediately forward [her] complete file" to defendant Harris C. Legome. Plaintiff responded to Allen, expressing that he was "very upset and disappointed in [her]," accused her of having "a very short memory" about how he became involved and "what [he] did to save [her] case," and asked her to "reconsider what [she was] doing and confirm that [she] will stay with [him]." Plaintiff also asserted, should she choose not to "change [her] mind," that she "at least owe[d] [him] the courtesy of a meeting to explain why [she had] done this to [him]." He also reminded Allen of the fee agreement.
After defendants also wrote to plaintiff to request the turnover of the file, plaintiff responded that he intended to relinquish a copy of the file "soon," but that it was not "convenient" for him or his staff to "drop everything and copy this file to the detriment of [his] other legal matters." Plaintiff did, however, enclose a list of his costs, which he claimed totaled $3,707.12, and advised: that I am claiming at least half of any fees that you recover, no matter what amount of work you put into this case. Notwithstanding all of the other work that I did for her, I was the attorney who was willing to run a substantial risk to take her case without any expert reports and on only a few days notice. This in itself would be worth at least half of the attorney fees in this case.
Legome responded; he acknowledged plaintiff's entitlement to his costs and agreed to reimburse plaintiff out of any settlement or recovery, but refused to pay plaintiff at that time. In addition, Legome rejected plaintiff's demand of 50% of any fees recovered and requested that plaintiff "forward your affidavit of services with the file."
Subsequent communications between plaintiff and Legome reveal a quarrel over the cost of copying the file. An agreement was finally reached and the file provided. In letters written in September 2003, Legome repeated his request for plaintiff's affidavit of services. In the last of these September letters, Legome advised that his firm would not honor plaintiff's claim to a lien if he did not provide an affidavit of services. Again, on November 17, 2003, Legome wrote to plaintiff rejecting plaintiff's claim to 50% of any fee received and advised that because plaintiff had not provided an affidavit of services he would assume that plaintiff was waiving his entitlement to any fee.
Time went by. Defendants served and responded to discovery demands made by their client's adversaries. Defendants also secured the opinions of experts regarding the claim that Allen suffered from reflex sympathetic dystrophy, obtained the services of a vocational loss expert, and engaged in a site inspection with their adversaries in the company of experts.
Toward the end of September 2004, Allen's suit was the subject of a three-hour mediation session with a retired superior court judge. When those efforts failed to produce a settlement, defendants took several depositions and prepared for the depositions noticed by their adversaries. In October 2004, the parties to Allen's suit participated in a mandatory court arbitration and, when that also failed to produce a settlement, defendants prepared Allen's case for trial. Prior to trial, defendants were required to respond to and successfully fended off various in limine applications regarding the scope of their experts' testimony. The parties then agreed to conduct the trial as a binding arbitration, which took place over several days in April 2005, that culminated in Allen's recovery of $604,545.46. From that, defendants received $192,364.66 in fees.
Plaintiff claimed he learned of Allen's recovery in September 2005. Plaintiff, however, did not take any steps to vindicate his claim to a lien on that recovery until February 16, 2006, when he forwarded an affidavit of services, which asserted his prior expenditure of $3,707.12 in costs and expenses and which contained a broad summary of the types of services he provided to Allen prior to his termination as her attorney.*fn2 Based on these generalities, plaintiff claimed entitlement to 80% of the fees received by defendants. Defendants eventually reimbursed plaintiff for his costs and expenses but disputed his entitlement to any fees.
On July 25, 2006, plaintiff filed this action. His requests for the entry of an interlocutory injunction or for the payment of the disputed fees into court were denied. Plaintiff twice amended his complaint, eventually joining Allen as a defendant in August 2007. Allen did not answer and default was entered against her a few months later.
In discovery, defendants served interrogatories, which included the following question:
Describe in detail all work performed by any attorneys from the Law Offices of George R. Szymanski on behalf of Jessica Allen, including amount of time spent to the nearest tenth of an hour.
Plaintiff provided the following response:
See the file of George Szymanski generated on behalf of Jessica Allen, which was given in its entirety to the [d]efendants in 2003. It is nearly impossible to accurately describe in detail all work performed on behalf of Jessica Allen, due to the passage of four (4) years of time and because I did not keep contemporaneous time records. This is why I am demanding a percentage of the attorney fees earned. Any attempt that I could make to reconstruct the time that I spent on Jessica Allen's case would short change myself in the amount of time that I spent on the case. [Emphasis added.]
Plaintiff was never deposed; defendants did not seek a more specific answer to this interrogatory; and plaintiff never amended his answer to provide any greater detail.
A non-jury trial commenced on July 2, 2008. After opening statements, plaintiff testified on his own behalf. He provided a general narrative of how he became involved in the representation of Allen and the actions he took on her behalf. Plaintiff advised that he did not keep contemporaneous time records, feeling it was unnecessary because he represented Allen pursuant to a contingency fee agreement. In the midst of his direct testimony, plaintiff spoke of a certification of services he was attempting to construct and that he would "hand [it] into [sic] Your Honor at the conclusion of my case." After extensive objections and colloquy, plaintiff again indicated that he was "going to submit a certification of my services where I'm going to put the dates, the description of my services and the time, the amount of time that I can approximate as I could, best as I could." The judge responded that he had gathered from plaintiff's earlier comments that the certification of services had already been prepared and that a copy had been sent to defendants; to that plaintiff replied that he had "not yet" finished or finalized the certification and repeated that he would "[a]t the end of the case[, . . .] submit an exhibit reflecting everything I'm testifying to." Defendant objected, asserting that this is exactly what we asked for in discovery. He said he couldn't do it. He said it was nearly impossible yet today he apparently says, oh, I could do it, and I'm going to give it to Your Honor, but I'm going to give it to you at the end of the case. . . . I object to it, Your Honor. We asked for it in discovery. He said he couldn't do it.
After hearing additional argument, the judge concluded that plaintiff could not provide the specification contained in a certification of services, which he apparently prepared the night before, because he had provided a sworn answer to an interrogatory that it was "nearly impossible" to provide specifics.
Ultimately, the judge's determination regarding plaintiff's attempt to assign specific amounts of hours to the services he only generally described in discovery formed the basis for the judge's grant of a directed verdict in favor of defendants. In essence, the judge dismissed plaintiff's claims against defendants due to the lack of specificity in plaintiff's proofs and because of his attempt to try the case by way of ambush.
As stated earlier, we find insufficient merit in plaintiff's many arguments in support of the appeal to warrant discussion in a written opinion. We only briefly mention, after having now recounted the relevant circumstances, that the trial judge was entirely justified in dismissing plaintiff's claims against defendants. The dismissal was essentially based on plaintiff's flagrant disregard for the obligations imposed by our discovery rules.
"Concealment and surprise are not to be tolerated in a modern judicial system." Lindenmuth v. Holden, 296 N.J. Super. 42, 52 (App. Div. 1996) (quoting Myers v. St. Francis Hosp., 91 N.J. Super. 377, 385 (App. Div. 1966)), certif. denied, 149 N.J. 34 (1997). "Our procedures for discovery are designed to eliminate the element of surprise at trial by requiring a litigant to disclose the facts upon which a cause of action or defense is based." McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001); see also Liguori v. Elmann, 191 N.J. 527, 570-71 (2007).
These basic principles are "designed to ensure that the outcome of litigation shall depend on its merits in light of all the available facts, rather than on the craftiness of the parties or the guile of their counsel." McKenney, supra, 167 N.J. at 370; see also United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986-87, 2 L.Ed. 2d 1077, 1082 (1958) (holding that modern discovery rules are intended to "make a trial less a game of blindman's [bluff] and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent"); Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 467 (1998) (Pollock, J., concurring) (observing that "[m]odern litigation is too time consuming and expensive for courts to tolerate discovery abuses. For over fifty years, courts have endeavored to transform litigation from a battle royal to a search for truth"). As a result, when there is a "material variance between the answers to interrogatories and the proofs attempted to be adduced at the trial," where the "variant data was or should have been known to the answering party" prior to trial, and "where there has been no amendment of the answer given in the interrogatory to include the new data," Branch v. Emery Transport Co., 53 N.J. Super. 367, 374 (App. Div. 1958), a trial judge may exercise his or her wide discretion to impose an appropriate sanction that is "just and reasonable," Lindenmuth, supra, 296 N.J. Super. at 52.
The circumstances of this case, which we have outlined, reveal that plaintiff attempted to surprise defendants at trial with specific information about the services he performed for Allen. Having stated under oath in answers to interrogatories that it was "nearly impossible" to provide specificity, plaintiff testified at trial that he was then in the process of completing a certification of his specific services.*fn3 Even then, plaintiff did not provide the certification in advance of his testimony, but instead suggested a process by which the certification would only be provided after he had finished testifying. The judge correctly precluded this ambush and properly dismissed plaintiff's claims due to his failure to provide sufficient specificity in discovery. We have been presented with no reason to second guess the judge's exercise of his discretion in precluding plaintiff's tardy specification of his services and find no error in the dismissal of the claim due to the lack of such specificity.*fn4